Section 171.208 of the Texas Heartbeat Act of 2021 allows "[a]ny person, other than an officer or employee of a state or local governmental entity in this state" to "bring a civil action against any person" performing or aiding and abetting an unlawful abortion.
Putting aside the massive controversy surrounding this law (sometimes derisively called the "Texas Bounty Hunter Law"), I got to wondering what kind of civil cause of action is actually created here.
This obviously isn't a breach of contract, since the plaintiff obviously need not have any prior contract with the defendant. It also wouldn't seem to be a tort, since there is no general duty of care not to participate in an abortion. Even assuming, arguendo, that this statute creates a duty of care not to participate in an abortion and owed to almost everyone else in the state, the vast majority of potential plaintiffs are either not going to be harmed by any particular abortion or will experience only a de minimis harm. Without legally cognizable harm done to the plaintiff, no tort action will typically lie even if a duty of care is breached.
Another possibility I considered was that an equitable remedy is being created, but equity is designed around achieving fairness and giving someone a windfall because someone hundreds of miles away that they don't know drove someone they also don't know to an abortion clinic they had not previously heard of does not achieve any sort of equity.
What kind of civil action is created by the Texas Heartbeat Act? Is it an action in breach of contract? Is it a tort action? An equitable remedy? If it is none of these, what kind of action is it and are there other examples of this kind of action elsewhere, either in Texas law or in any other Common Law jurisdiction?
